Opinion
No. 16395.
Delivered February 21, 1934.
Assault With Intent to Rape — Indictment.
Indictment for assault with intent to rape held defective in that it fails to allege that the female, who was under the age of consent, was not the wife of the accused.
Appeal from the District Court of Wichita County. Tried below before the Hon. P. A. Martin, Judge.
Appeal from conviction for assault with intent to commit rape; penalty, confinement in the penitentiary for two years.
Reversed, and prosecution ordered dismissed.
The opinion states the case.
W. W. Ballard, of Wichita Falls, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is assault with intent to rape; penalty assessed at confinement in the penitentiary for two years.
The record is before this court without statement of facts or bills of exception.
The indictment is defective to a degree that renders a reversal of the judgment necessary in that it fails to allege that the female, who was under the age of consent, was not the wife of the appellant. Throughout the history of the jurisprudence of this state, an indictment omitting such averment has been regarded as insufficient to charge the offense. See Bullock v. State, 54 S.W.2d 91, and precedents therein cited.
The judgment is reversed and the prosecution ordered dismissed.
Reversed, and prosecution ordered dismissed.